On February 11th, the Department of Homeland Security’s U.S. Immigration and Customs Enforcement division (ICE) executed seizure warrants against 10 domain names allegedly tied to child pornography. During the operation, however, the domain name of a popular DNS provider was mistakenly seized, resulting in the shutdown of approximately 84,000 Web sites. The massive blunder adds to the growing controversy over the federal government’s practice of confiscating Internet domain names.

The 84,000 Web sites were all subdomains of mooo.com, a free domain host operated by FreeDNS. After ICE ordered the domain name shut down, visitors to the sites were redirected to a server that hosted the following warning:

“Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution.”

Although mooo.com was restored two days later, the incriminating banner remained on some of the subdomains for up to five days. Owners of the Web sites, including many small businesses, were understandably furious over the damaging accusations.

The ill-fated seizures were conducted as part of “Operation Protect Our Children,” a joint effort between ICE and the Department of Justice aimed at removing child pornography from the Internet. This comes on the heels of “Operation In Our Sites,” a similar ICE initiative announced last June that seizes the domain names of Web sites accused of offering pirated or counterfeited content or products.

The programs are controversial for at least two reasons. First, they provide virtually no procedural safeguards. ICE confiscates domain names pursuant to a seizure warrant issued ex parte; the Web site owners are never notified. Because the judge hears only the government’s allegations, there is a high risk of erroneous deprivation. In fact, last November ICE shut down a hip-hop blog for allegedly linking to pirated songs. It turned out that the songs had actually been sent to the Web site by the artists and record label representatives themselves. Had the owner been given an opportunity to respond to the accusations, the ordeal could have been avoided. Some commentators have questioned ICE’s need for such speedy procedures.

Second, the seizures rest on dubious legal theories. Although vicarious and contributory copyright infringement may generate civil liability, only direct infringement rises to the level of criminal conduct. ICE, however, has been targeting sites that merely provide links to infringing content or embed content from other sites. The government has taken the position that these actions constitute direct copyright infringement, though no court has ever adopted such a broad interpretation. By imposing criminal liability on “linking” sites, this theory would effectively outlaw all search engines, and although ICE insists that search engines such as Google would not be subject to seizure, it has struggled to articulate a coherent explanation for the perceived distinction. The notion that one can directly infringe by simply embedding another site’s content is equally suspect, and would appear to be foreclosed by Ninth Circuit precedent.